The Firearm Filibuster

After the deadliest mass shooting in U.S. history, Senate Democrats quickly rallied to stage a filibuster yesterday that proceeded for more than 14 hours. The goal of the filibuster: to force votes in the Senate on gun control measures. And by the end of the night, that goal was in sight:

Sen. Chris Murphy (D-Conn.) and fellow Senate Democrats officially relinquished the floor early Thursday morning after spending nearly 15 hours straight talking about gun control, paving the way for high-profile congressional votes on restricting firearms just days after the worst mass shooting in modern U.S. history.

Though senators had yet to formally strike a deal, the Senate was likely to vote on two Democratic-backed gun measures: a proposal from Sen. Dianne Feinstein (D-Calif.) meant to bar those on federal terror watch lists from obtaining firearms, and a plan from Murphy and Sens. Cory Booker (D-N.J.) and Chuck Schumer (D-N.Y.) mandating background checks for sales at gun shows and over the internet.

This is, at least symbolically, a victory for proponents of increased gun control (like myself). In the majority Republican, NRA-controlled Senate, all attempts at limiting unfettered gun possession are unlikely. But pro-gun congresspeople have blocked any movement on America’s gun violence epidemic for so long that even getting a vote is a win.

While I celebrate this small step forward, I do want to examine Sen. Dianne Feinstein’s above proposal a little closer.

Conservatives and libertarians have made the point that terrorist watch lists are themselves unconstitutional, and that they shouldn’t be the basis for restricting guns. Theodore Kupfer argues:

The Fifth Amendment holds that no citizen may be “deprived of life, liberty, or property” by the federal government “without due process of law.” The Fourteenth Amendment imposes a similar restriction on state governments. In both cases the meaning of “life, liberty, or property” is underdetermined. Our courts have, for decades, endeavored to define precisely what rights are protected and what procedures constitute due process. But only a reading of the Constitution as contemptible of civil liberties could support the proposed law.

Simply making it onto the No Fly List, or any other of the government’s nebulous array of watch lists, does not mean your constitutional rights can be forfeited. Indeed, more than 1 million people are in the government’s central database of suspected terrorists. Many of them are mistakenly listed. It is abundantly clear that whatever the procedures for putting someone on a terror watch list are, they do not constitute due process. Accordingly, an individual cannot be deprived of their “life, liberty, or property” simply because the government suspects him of being a terrorist.

On this point, I actually agree with Kupfer to an extent. Something as arbitrary (and as corruptible) as a terrorist watch list or a no-fly list should not be the basis for restricting gun rights. Yet I still don’t think that people on a terrorist watch list should be able to buy guns — but that’s because I don’t think that anybody should be able to buy guns, at least not without thorough background checks, licensing, training and strict punishment for misuse.

The much revered and reviled Second Amendment is not, in my opinion, to be read as an infallible and unchangeable text. Indeed, it is an “amendment” because it was added to amend a document that many Americans view as sacred. I view the Second Amendment from a historical context. What made sense when it was conceived may not make sense now. The country has evolved, and so too should the Second Amendment.

If Feinstein’s proposal does somehow become law, I hope that it includes the proper language to keep it from being abused. I worry that without the necessary language, challenges brought against such a law could overturn the well-intentioned work Feinstein is trying to do. More importantly, I worry that the law could disproportionately target minorities who are disproportionately viewed as terrorists.

What I really wish is that we could re-examine the meaningfulness of the Second Amendment in the context of life in the 21st century and determine if it’s contributing to the health or destruction of our nation. If we could do that, I believe we’d find that the Second Amendment is in desperate need of revision for the continuing improvement of our imperfect Union.